(Concluded from the last issue .)
The emergency of 1975 and the Maintenance of Internal Security Act both were
validated by the Court. The Proclamation of Emergency to contain internal disturbance
was thoroughly exposed as the most obnoxious political act and yet it left both
the Executive and the Judiciary unreformed. Despite this the majority of the
court proceeded on the assumption that people and the institutions are adversaries
and in this adversarial role the court always held the historical view that
freedoms were granted to the people and therefore subject to withdrawal. The
'tryst with destiny' is not a total brake with the colonial past and its administrative
and judicial structures. There was a transfer of power and the Indian Independence
Act 1947 enabled us to succeed the British. The idealism which Nehru brought
into his midnight speech does not find a place in the utterances of the Court
- major institutions described by one of its earliest judges as the sentinel
on the qui vive. Nearly seventeen years after independence the Court in State
of Gujarat vs Fiddali Badrudin (1964 SC 1043) held the view that the advent
of the Constitution did not result in transfer of sovereignty from the Dominion
of India to the Union.

The continuance of the governmental
machinery and laws of the dominion give a lie to any theory of transmission
of sovereignty and from its ashes, the springing of another sovereign. The Court
continued that there is no holding that at the stroke of midnight of 25 January
1950 all our pre existing institutions ceased to exist and in the next moment
arose a new set of institutions completely unrelated to the past. According
to the Court all the Constituent Assembly did was to give form to the Constitution
which functioned for several years under the old regime and set up the constitutional
machinery on the foundations of the earlier set up. It did not seek to destroy
the past institutions. It raised an edifice on what existed before. The Constitution
moulded no new sovereignty. Affirming this decision twenty two years later in
Ummaji (1986 SC 1272) a Full Bench decision which held that the Constitution
made a complete break with the past was set aside. The mindset so unequivocally
and categorically set down cannot be explained away by trying to confine it
to the subject matter that came up for adjudication. Once the premier institution
of democracy holds this vies, all institutions of governance begin to perceive
people as subjects with no right to change their lives and fate. Their transformation
as citizens, an identity which enables them to participate in governance, is
ignored and any people's movement to build up a better society or to bring forth
better conditions to live is seen as a threat to security of State. The Rowlattian
response is then justified by all these institutions. In that sense Emergency
did not make any differences as our understanding of democracy has always been
very superficial with frequent polls satisfying our democratic conscience. And
we have the same repressive legal structure continuing, as a dominant component
of Part III of the Constitution.

The result was the country's
institutions were not geared to deal with efforts to undermine the constitution
and when for the first Mrs. Gandhi by use of Emergency provisions in the constitution
attempted to undermine almost successfully, the constitution the nation was
unprepared. A feeble attempt was made to check political crimes an abuse of
political power as were revealed by the various commissions set up during the
post emergency period. The Special Court Act was passed. Chief Justice Chandrachud
in his opinion on the Special Courts Bill wrote "Parliamentary democracy
will see its Halcyon days when the law will provide for a speedy trial of all
offenders who misuse public office held by them. Purity of public life is a
desire goal at all time and in all situations, Emergency or no Emergency".
Before passing the Special Courts Act care was taken to see that the parliament
did not legislate political vendetta against Mrs. Gandhi and the people who
supported the Emergency by having the Bill referred to the Supreme Court for
its scrutiny. After such clearance by the Supreme Court the Act that was passed
by the Parliament was a permanent one intended to check future abuses as well.
Clause 4 of the permeable made the Act a permanent one. According to this clause
persons holding high public and political officer are actually trustees in regard
to the powers vested in them and offences committed by them in breach of the
trust and confidence reposed in them would also fall within the ambit of the
Act.

The result "The entire
Emergency and all that went with it had been reduced by now to 21 First Information
Reports. These had resulted in 4 cases, 2 per special court: 139 Jeeps valued
at Rs. 70 lakhs had been obtained for the 1977 election campaign without payment
or hire charges; a Minister of information had used some artists of a government
department to design election posters; for four officers have been arrested
while collecting information to answer a Lok Sabha question, Bhimsen Sachar
and 7 others had been arrested for writing a letter to Indira Gandhi. That was
all" (1980 Arun Shourie).

The experiment that was
introduced by the Special Court Act was short lived.
The Delhi High Court enumerated twelve grounds substantiating that the Shah
Commission's Report had become infructuous and also quashed the prosecution
of Mrs. Gandhi for not taking oath before the Shah Commission. One need not
feel embarrassed to mention names because these literally formed the statement
of object and reasons for repealing the Special Courts Act 1979 by the Special
Courts (Repeal) Act 1982. The repeal proceeded on the footing that the Act was
passed for a limited purpose, viz., for prosecuting emergency excesses, whereas
the Supreme Court in VC Shukla's case pointed out that the Act is a permanent
one. One can safely assume that the repealing Act was passed without any debate.
The fate of the Special Courts Act should inform us to what extent would politicians
go to formulating a penal code for themselves. If a law passed by the parliament
could so easily be repealed a judge made law will be simpler still. It is not
necessary to over rule the decision; it can be ignored.

The National Security Act
1980 devised a method to validate incarceration of personal liberty by a "deemed"
provision, by a legal fiction. While, it is said, that procedure remained the
last defence of a citizen as a person, by this Act even that defence was also
taken away. The detaining authority's subjective satisfaction and a person's
liberty is governed by this legal fiction. Every ground, whether relevant or
irrelevant, shall be deemed to be a separate detention order. This legal structure
diminished democracy and emphasis on rights was viewed as supporting anarchy.
Once this found acceptance, the abuse of law leading to violence by the state
was looked upon as valid exercise of power. This acquisition of enormous power
produced an irresponsible and corrupt system of governance.

Political discontent which
was genuine to start with was never examined. No attempts were made to resolve
crisis. Discontent was allowed to fester and later treated as a law and order
issue, to be outlawed de facto without any overt banning of activity. The issue
soon begins to be perceived as intractable calling for a new attitude and new
penal code. After the 44th Amendment it is no longer possible to invoke the
emergency provision to contain internal disturbance. It can be invoked only
when there is a threat of armed rebellion within. When this Amendment was brought
about the obvious intention was to prevent the state from frequently resorting
to the Emergency provisions to impose an arbitrary and authoritarian rule on
the slightest pretext. Ironically this amendment seems to have given more space
to the Executive to introduce repressive legislation without the necessity of
suspending any of the fundamental rights. The Terrorist and Disruptive Activities
(prevention) Act 1985 took leave of the time honoured principles of criminal
jurisprudence. One major achievement of this piece of repressive legislation
was, by extending the remand period to one year, the appropriation of the powers
of preventive detention without attracting the limitations in Article 22 as
also the publicity which a Habeas Corpus petition in the High Court would invite.
Such arbitrary procedure and powers would only lead to its abuse which was so
widespread that its continuance was resented even by the NHRC and so it was
not revived.

The Supreme Court validated
the provisions of the Act and ruled that as terrorism is not an enumerated category
in any of the three lists in the Seventh Schedule it falls within the residuary
powers which belong to the Parliament. We notice in the case of the validity
of TADA (Kartar Singh) the emergence of a disturbing trend of the validation
of arbitrary laws passed by the Parliament by the Court. For instance providing
guidelines for recording confessions by superintendents of police under TADA
or in the case where the validity of The Armed Forces (Special Powers) Act (Naga
Peoples Movement for Human Rights), accepting army instructions to subordinates
issued with a view to avoid arbitrary actions as adequate safeguards against
violation of one's fundamental and human rights. Such a course is not authorised
by Article 21 as interpreted from Maneka Gandhi (1978) onwards. While judgments
rendered by the court have the force of law they suffer from absence of communication
and so by and large remain ineffective. In fact there is no way of communicating
the law laid down by the court to the public at large. The length of these judgments
and the difficulty in unravelling the rationale of the case are daunting obstacles
which discourage any attempt at effective communication. If these guidelines
are to be effective these should be known to the accused before he/she is chargesheeted
and to the public so that they may know what their rights are when they may
know what their rights are when they are arrested as suspected terrorists. Questioning
the competence of the Parliament and the validity of the enactment of The Armed
Forces Special Powers Act, quite a few writ petitions were filed between the
years 1980 and 1991 by the Naga Peoples Movement for Human Rights and others
and these came up for hearing before the Supreme Court in the month of November
1997. The Court considered the instructions of do's and don'ts claimed to have
been issued by the Army as adequate safeguard against abuse. These instructions
have been elevated to the status of Procedure Prescribed by Law, the mandatory
requirement of Article 21 as interpreted by the very same court in several decisions.

Can instructions take the
place of law? Should not a law or a rule effecting liberty be published and
available for the public to inform themselves? Do the judges expect a havaldar
to hand over on demand these instructions? In 1982 Mr. Tarkunde an ex-judge
of the Maharashtra High Court was mauled by the police at Madurai just for asking
the Additional Superintendent of Police to name the provision which enabled
the police to prevent photography of the police brought to control a mere hundred
processionists. This after he announced that he was a high court judge for quite
a few years. What is objectionable in these trends is making up the deficiencies
in law by Court's exercise of power under Articles 141 and 142.

The amendment brought about
by the 44 Amendment to Article 352, instead of restricting the power of the
Executive, has in fact expanded the powers of parliament to pass laws with reference
to "internal disturbances' without let or hindrance. TADA could not have
become operative without invoking Article 352 prior to the 44th Amendment. After
the Amendment it appears to be no longer necessary to comply with any of the
fundamental rights so long as the Act to deal with internal disturbance is of
limited duration but with the power to keep the law alive by unlimited extensions.
The Preventive Detention Act was extended year after year for eleven years and
now we have it permanently. TADA was extended every two years for ten years.
This also may become part of permanent penal code. The Armed Forces (Special
Powers) Act commenced its career as a temporary measure but gained a permanent
status in 1958.

The Central legislation
broadly understood as Security Laws was possible when the centre was strong,
which in a system of parliamentary democracy, meant an absolute majority in
the parliament. The ruling party headed by Mrs. Gandhi in 1967 lost in five
states. Corruption and unhealthy political practices made their first appearance
quite brazenly. By an adroit political sleight of hand the crisis was transformed
into an ideological confrontation with the court. There were also efforts to
mount an authoritarian structure. As the centre was weak the states were directed
have their own preventive detention laws. The Elections in 1971 and 1972 and
the successful war with Pakistan contributed to the emergence of a strong government
at the centre. A strong government need not necessarily be a good government.
This was adequately demonstrated by the Emergency that followed.

We are now facing almost
a similar situation. We have a weak government at the centre with no credible
politics to offer to the people. Religion has never been a unifying force capable
of converting the entire Hindu Majority into a vote bank as was amply demonstrated
by the results of the elections. We have been entertaining the poor of this
country to a Barmecides' feast for nearly half a century an as the illusion
is wearing thin, people will organise themselves against this enveloping insecurity
and this is perceived as a threat to security of state. The Home Minister, as
Mrs. Gandhi did earlier, advised the states to have their own terrorist laws.
Thus Tamilnadu passed the prevention of terrorist activities act without allowing
any debate and is awaiting the assent of the President. The Act is a reproduction
of the TADA 1985 unexpurgated. Already the contents of the law as in TADA 1985
was held valid by the Supreme Court. The only question that remains is whether
the Tamilnadu Assembly has the competence to legislate for the control of terrorism
as this falls within the residuary power of the Union? The jurisprudence of
power may this time yield a different interpretation and the court may find
the law competent as it is intended to deal with local terrorism comprehended
by public order which is a state subject and under entry 2 A of the Union list
the central government can deploy its armed forces to aid civil authorities,
but always subject to its control. This would be in tune with the desire to
respect the federal principle. Thus fascism can be made a state field of legislation.

Andhra Pradesh after Jalagam
Vengal Rao has been a model Police State. Not to be outdone by Tamilnadu they
also manufactured a bill to become a law later. The State, on account of the
presence of a continuing left movement has always been a forerunner in bringing
about innovative pieces of legislation. When Mrs. Gandhi said the states could
have their own preventive detention laws, it brought about the AP Preventive
Detention Act 1970, which legislated that every ground of detention should be
viewed as detention order. This law was struck down by the AP High Court as
violative of Article 22 (5) itself. Those were the days when fundamental rights
were still fundamental and were not subordinated to the jurisprudence of power.
This provision found its place in The National Security Act 1980 and its validity
has not been questioned. Andhra Pradesh established successfully that no law
need to be applied to control inconvenient political dissent. It also established
yet another principle that the constituent units of the Indian Union need not
comply with the provisions of the various International Covenants to which this
country is signatory. The present legislation is to obliterate part III of the
Constitution. The legislation may come through or may suffer some modifications.
The mind set is what is important. In the brochure brought out for study by
its legislators, it has provided the resource material which includes all the
British laws used to suppress the freedom struggle. While the Constitution by
Article 51 A makes it a mandatory duty to cherish the ideals which inspired
our freedom struggle, the State has always been cherishing the methods that
were used by the British to suppress the freedom struggle and its police have
truly been the heir of General Dyer of Jalianwala Bagh fame. It is not necessary
to deal with all the provisions in the bill. One novel aspect of the legislation
is sufficient to demonstrate the fascist inclinations of the government. Ex
Ungue Leonem.

We are all familiar with
a legal category called "National Area". But none of us ever heard
of a person being notified in the Gazette as a "Notified Person".
It is not necessary that this person should be found in a notified area. He
can be found anywhere. Once a person is notified he cannot be given shelter
or food. He cannot approach any doctor, nursing home or hospital for treatment.
His parent's kith and kin and other relatives become suspect and will be subject
to surveillance and repeated arrest for apprehension of the notified person.
He is likely to be shot on being spotted or apprehended and the announcement
that he was killed in an encounter-the fig leaf legality - is dispensed with.
It can neither be homicide nor murder. The Notified Person epitomises and confers
legality on thirty years and odd of the brutal practice of physical liquidation
of radical dissent by the Andhra Pradesh police. It sets at naught all International
Covenants ensuring respect for human rights; it abrogates Article 21 primarily
and the other freedoms as well. It did not invite the protest it should. In
fact there has been no protest worth the name. This measure is seen as measure
directed against CPI (MLPWG) and other naxalite parties and groups and that
would be an irretrievable mistake. While he advice to the states to have their
own terrorist law may bear some similarly to Mrs. Gandhi and the Congress she
led that the BJP led coalition would stage a come back as she did is not even
a remote possibility. But the emergence of a federal structure with fascist
states appears to be a frightening prospect. The centre can supply forces to
the constituent units and be satisfied with a limited role. It is becoming increasingly
difficult (and therefore disturbing) to visulaise a political programme or ideology
spanning the entire country nor is there a leader acceptable to all the people-a
national leader.